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Tuesday, July 20, 2004

HON. ROBERT W. SWEET

There's an old saying, it might be Greek, that states; the very young and the very old can say whatever they like. Well Justice Sweet is no spring chicken, but at leat he's got common sense. I'll leave it to him:

"WHY does a sitting judge, constitutionally charged with enforcing the laws of the United States, seek the abolition of the criminal penal ties attached to drug use and distribution? The answer in my case stems from personal experience, leading to the conviction that our present policy debases the rule of law and that its fundamental premise is flawed.

In college in the Forties, while experimenting with the drug of choice-alcohol-I cheerfully sang the lyrics of "Cocaine Bill and Morphine Sue," without any understanding of the reality behind the words. As an Assistant United States Attorney in the Fifties, I accepted the enforcement of the drug laws without question. In the Sixties, as Deputy Mayor of the City of New York, I supported methadone and various modalities of treatment and rehabilitation. After becoming a federal trial judge in 1978, I presided over drug trials and sought to impose just sentences ranging from probation to twenty years.

Then Congress enacted mandatory minimum sentences, and judicial discretion was radically restricted. The day in the fall of 1988 that I was mandated to sentence Luis Quinones, an 18-year-old with no prior record, to ten years of real time because he was a bouncer in an apartment where drugs were being sold, I faced our national drug policy and the need to reexamine it. Assisted by the writings of Professor Ethan Nadelmann I concluded that our present policy of criminal prohibition was a monumental error. A number of other judges have reached the same conclusion. Judge Weinstein has characterized our present policy as "utter futility," and Judge Knapp has likened it to "taking minnows out of the pond."
As Chief McNamara writes, the realities of criminal prohibition are becoming recognized. The first and foremost effect is the creation of a pervasive and unbelievably powerful underground economy.
The Economist estimates that the markup on cocaine and heroin is not 5,000 per cent, as Messrs. Buckley and Duke suggest, but 20,000 per cent. The drug market in the United States is estimated at $150 billion a year. At least one group of distributors in a case before me sold 37,500 kilos of cocaine a month for gross sales of almost $20 mil lion a month, and this group was but one of a number operating here.
While this economic engine drives forward, so have our efforts to punish those who operate it. Today we have the highest incarceration rate for any Western nation, almost 1 million [There are higher estimates. -ED.] in jails or prisons at a cost of $20 billion a year. Federal drug cases have trebled in ten years, up 25 per cent in 1993 alone, with marijuana cases up 17 per cent. The total federal expenditure on the drug war this year under the proposed budget will exceed $17 billion. Ten years ago the annual expenditure on the drug war was $5 billion for all governments, federal, state, and local.

While our expenditures have increased tenfold, the number of Americans using drugs has remained relatively constant at 40 million. Steady users are estimated to be 6 million, with 1 to 2 million of those seriously disordered. Our present prohibition policy has failed, flatly and without serious question.
Secondly, the rule of law has been debased by the use of criminal sanctions to alter personal conduct. Of course, the same effort was made in the Twenties and Thirties with respect to alcohol, with the same results. AI Capone and Nicky Barnes are interchangeable. Drive-by shootings, turf wars, mugging, and random violence are all the direct result of criminal prohibition. Courts are clogged with drug cases to such an extent that in some jurisdictions (the Eastern District of New York and the Southern District of Florida, for example) it is difficult to find the resources to try civil cases; yet, the street-corner availability of drugs is known to every citizen.

The rights of the individual have been curtailed in the name of the War on Drugs. We have seen the elimination of an accused's right to pretrial release for most charges under the drug laws; heightened restrictions on post-conviction bail; and invasions into the attorney-client relationship through criminal forfeiture.

The criteria for securing a search warrant have been relaxed. In drug cases, the Supreme Court has permitted the issuance of search warrants based on anonymous tips and tips from informants known to be corrupt and unreliable; permitted warrantless searches of fields, barns, and private property near a residence; and upheld evidence obtained under defective search warrants if the officers executing the warrant acted in "good faith." Taken together, these holdings have been characterized as "the drug exception to the Fourth Amendment."

Police corruption and the unwholesome practice of using confidential informants (one of whom made over $100,000 in a case before me) have been noted by Chief McNamara.

Finally, the fundamental flaw, which will ultimately destroy this prohibition as it did the last one, is that criminal sanctions cannot, and should not attempt to, prohibit personal conduct which does no harm to others. Personal liberty surely must extend to what, when, and how much a citizen can ingest.

The Framers of our Constitution explicitly acknowledged that the individual possesses certain rights not enumerated in the text of the Constitution and not contingent upon the relationship between the individual and the Federal Government. When a right has been narrowly defined as, for example, the right to possess marijuana or cocaine, the courts have refused to recognize it as one that is fundamental in nature. However, when the right to ingest substances is considered in more general terms as the right to self-determination, that right has a constitutional foundation as yet undeclared.

To overturn the present policy will not be easy, given the established bureaucracy, but President Kennedy at the Berlin Wall was correct: "Change is the law of life." We must recognize that drug use is first and foremost a health problem, and that, as Professor Nadelmann has established, mind-altering substances are a part of modern life to be understood and their effects ameliorated, rather than grounds for prosecution.

Alcohol and tobacco have a social cost when abused, and society has properly concluded that abuse of these drugs is a health problem, not a criminal issue. Indeed, our experience with the reduction of 50 per cent in the use of tobacco-the most addicting of drugs, which results in 400,000 deaths a year-confirms the wisdom of that policy. To distinguish between these substances and heroin or cocaine is mere tautology.
While the medicalization of the issue is going forward, Congress should accept the recommendations of President Nixon's commission on the drug laws and of the National Academy of Sciences in 1982 and end the criminalization of marijuana, which is now widely acknowledged to be without deleterious effect. That reform alone would take 450,000 arrests out of the system.

The latest crime bill proposed a study of violence and crime encompassing drug policy but failed to fund it. The Surgeon General proposed such a study and got fired. Such a study, if fairly conducted, would compel the abolition of criminal prohibition of drugs by the Federal Government, permitting all drugs to be treated much the same as alcohol: restricted by the individual states as to time and place of sale, barred from minors, subject to truth in advertising, and made the source of tax revenue. As with alcohol, those who harm or pose a threat to others while under the influence of drugs would face criminal sanctions.

The effect of the underworld drug economy, the debasement of the rule of law, and the undermining of fundamental fairness and individual rights under the war on drugs all combine to require that the criminal prohibition against drug use and distribution be ended."

Makes sense to me. As for his ruling on police searching of demonstrators at the RNC, again, he's right on the money. The best way to eliminate a terror threat in NYC during the RNC is to not have the RNC in NYC. Try Montana, not many folks up there. When they blow you up, we'll be spared. Truly.

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